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"Broccoli" patent hearing cancelled

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25 October 2011

The EPO technical board of appeal dealing with the appeal against
the "broccoli" patent has cancelled the oral hearing scheduled for 26 October
in response to recent submissions filed by the parties involved in the case.

Taking into account the ruling of the Enlarged Board of
Appeal of the EPO that methods for the production of plants which comprise
conventional breeding steps as well as technical ones are not patentable under
the applicable European patent law, the patentee has proposed to limit its
original patent by excluding the breeding methods. Thus, only the broccoli plants
as such remain protected. The two firms appealing the patent made their request
for a public hearing conditional on whether the board decides not to follow the
proposal of the patentee. Therefore, the board will now issue its reasoned decision
in writing.

The technical board of appeal competent in
"Broccoli" case forms a part of the EPO's second-instance in-house
judiciary. It consists of two members with a scientific background and a legal
expert. There are currently 28
technical boards of appeal, plus the Legal Board of Appeal, the Enlarged Board
of Appeal and the Disciplinary Board of Appeal. The boards are independent from the Office in their decisions and are bound
only by the European Patent Convention (EPC).

Oral proceedings in procedures at the EPO are governed by
the EPC. They may be requested by the parties involved, or
appointed by the EPO, to secure the right of the parties to be heard. Oral
proceedings are cancelled if they are no longer required. In those cases the
procedure is then continued in writing. This policy is routinely applied by all
instances before the EPO wherever appropriate in order to ensure efficiency and
effectiveness of the grant procedure. The full disclosure of all documents in
the EPO's freely accessible European Patent Register ensures timely
information of the interested public.

Background: The "Broccoli" patent

British company Plant Biosciences was granted a European
patent (EP 1069819) for a method for the production of plants whereby the
level of a potentially anticarcinogenic substance in broccoli plants can be
increased.

French company Limagrain and Swiss group Syngenta filed
notices of opposition to the patent in 2003 and maintained their challenge in
subsequent appeals. They allege, among other things, that the patent protects
an essentially biological method of breeding plants excluded from patentability
under the European Patent Convention (EPC) binding on the EPO. The technical
board of appeal hearing the two appeals stayed the proceedings and referred
questions to the Enlarged Board of Appeal (EBA) with a view to obtaining clarification
of the term "essentially biological processes for the production of plants
(or animals)" and the associated exception to patentability.

Similar questions were referred to the EBA in the case
concerning the "tomato" patent (EP 1211926) granted to the Israeli
Ministry of Agriculture and opposed by Unilever. It relates to a method for producing
tomatoes with reduced water content and on products of that method.

In its decisions on the referrals (G 2/07 and G 1/08), which
were issued on 9 December 2010, the EBA, whose task it is to ensure
uniform application of the law in the EPC and settle legal matters of
fundamental importance, held that selection and breeding methods comprising
sexually crossing the whole genomes of plants cannot be patented. The mere use
of molecular markers does not render such methods patentable.

Following that ruling, which is binding on the EPO and its
boards of appeal, the two appeal procedures were resumed. The board responsible
for reviewing the patents granted for the broccoli and tomato plants must now
decide whether they meet the patentability requirements and can be maintained.
The oral hearing in the "tomato" case is scheduled for 8 November.